Harris County in Crosshairs of Pollution Lawsuit Limits

In a session that's been kind to business interests, local control might be about to take another hit as the Senate tentatively approves legislation that could make it harder for counties to sue polluters.

With Harris County in its crosshairs, the state Senate on Wednesday tentatively approved legislation that could make it tougher for Texas counties to sue big-time polluters.

If finally passed, House Bill 1794would notch another victory for a wide range of business groups in a legislative session that’s been kind to industry at the expense of environmentalists and advocates for local control. The proposal would set a five-year statute of limitations and cap payouts at about $2 million when counties sue companies that have fouled their water or air.

A 24-6 vote with no debate set the bill up for a final Senate vote. The legislation already sailed through the House, pushed by Rep. Charlie Geren, R-Fort Worth.

Proponents say that curbing civil penalties assessed on top of those doled out by state regulators would bolster economic certainty for companies and allow them to focus resources on cleaning up their messes.

“This bill is about enforcing a policy that encourages people to do the right thing and not punish them,” said state Sen. Kelly Hancock, R-North Richland Hills, who carried the proposal in the chamber.

But critics say the Texas Commission on Environmental Quality (TCEQ) doesn’t do enough to hold polluters accountable, and that limiting local suits would encourage more pollution that jeopardizes public health.

“It is a terrible bill, and it is designed to protect polluters,” said Terry O’Rourke, special counsel with the Harris County attorney’s office. “That’s all it is: It is a polluter protection bill.”

The bill largely targets Harris County, which receives about 1,500 citizen complaints about pollution each year, and employs four attorneys to handle environmental litigation and compliance. Smaller counties typically rely only on outside legal help in environmental cases.

Nearly 50 years ago, Texas lawmakers gave local governments the power to bring civil suits against companies for violating environmental laws, and Harris County, home to the nation’s largest petrochemical complex, has often used that authority.

Any lawsuit dealing with state environmental violations requires the state to join in as a "necessary and indispensable party."

In the past five years, Harris County has brought about 10 such cases per year, with penalties averaging about $61,000 per case. But several high-profile environmental cases have resulted in bigger settlements with the county, including a January agreement with AT&T for about $5 million over leaking storage tanks.

Lawyers for the county and the state recently won a $29.2 million settlement from McGinnes Industrial Maintenance Corp. and Houston-based Waste Management Inc. for pollution in the San Jacinto Waste Pits in the eastern half of the country, where wastewater containing dioxin, highly toxic and carcinogenic, has festered for decades.

Such legal battles have become a flashpoint for some Republican lawmakers and business leaders in Texas, who think local governments shouldn’t be leading charges to prosecute over violations of state law.

“Is some of this enforcement chasing a rainbow?” state Sen. Paul Bettencourt, R-Houston, asked regulators at a legislative hearing in February.

Under HB 1794, local governments and the state would evenly split the first $4.3 million awarded in a suit, and the state would pocket any amount above that limit.

County officials say the cap on local government collections would make it difficult, if not impossible, to prosecute the most complex, egregious cases of pollution, because contingency fee lawyers would not sign on for such lower pay.

The counties, not the state, typically initiate such actions, said O’Rourke, who has been prosecuting environmental cases since 1973.

“It is only by contingent fee litigation that you can prosecute global corporations that are operating in Houston – Harris County, he said. “You can’t attract people to that if you’re going to kill them with contamination.”

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